Varghese Mathew @ Binomon v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2024-04-05
Court Decision / Holding: The bail application is allowed. The petitioner Varghese Mathew @ Binomon is ordered to be released on bail on a bond of Rs. 50,000 with two solvent sureties for like amount, subject to conditions: (i) appearance before the IO on Tuesdays and Saturdays 9 a.m.–11 a.m. until final report; (ii) no inducement or tampering with witnesses; (iii) no commission of offences while on bail; (iv) surrender of passport; (v) court may cancel bail on violation; (vi) capacity to seek modification of conditions; (vii) IO may investigate and recover evidence even while on bail as per Sushila Aggarwal. Sd/– C.S.Dias, Judge.
Final Disposition: Allowed; bail granted.

Parties to the Case

Appellants / Petitioners

Varghese Mathew @ Binomon

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv Aravind Ghosh

Counsels for Respondents

• Sri. C. S. Hrithwik

Case Synopsis & Summary

This is a bail application under Section 439 CrPC by Varghese Mathew alias Binomon, accused in Edathua Police Station Crime No. 98/2024 for alleged offences under IPC sections 341, 326 and 308. The de facto complainant and his friend were consuming alcohol when the accused demanded a share; upon denial, he throttled them and struck with an iron rod, causing grievous injuries to the complainant, though the victim did not die. The petitioner was arrested on 07.02.2024. He contends innocence, alleging false implication and that incorporating sections 326 and 308 was a tactic to deny bail. The prosecution argues that investigation is ongoing and the petitioner could tamper with evidence or intimidate witnesses if released. The court notes the allegation of a grievous assault with an iron rod; it cites Sanjay Chandra v. CBI on presumption of innocence, Dataram Singh v. State of U.P. on bail as the rule, and State of Kerala v. Raneef on Article 21 rights of undertrial prisoners, and Sushila Aggarwal v. State (NCT of Delhi) to permit investigation and recoveries even during bail. Considering 58 days in custody, near-complete investigation, and absence of demonstrated risk, the court allows bail on bond of Rs.50,000 with two sureties, subject to conditions including regular appearances, non-tampering, no new offences, passport surrender, and potential cancellation on violation.

Provisions of Law Cited

CrPC Section 439IPC Sections 341, 326, 308Constitution of India Article 21Code of Criminal Procedure, 1973Indian Penal Code, 1860

Legal Doctrines & Maxims

Presumption of innocence; Bail is the rule and detention prior to conviction is the exception; Right to life under Article 21 for undertrial prisoners; Investigative authority to continue while on bail (as per Sushila Aggarwal)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends total innocence and false implication; argues that investigation is complete and recovery effected; asserts that inclusion of IPC sections 326 and 308 was an attempt to deny bail; seeks release on bail given the period in custody.

Contentions of Respondents

The State argues ongoing investigation; contends release would lead to tampering with evidence and witness intimidation; seeks denial of bail pending final report.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Supports presumption of innocence and cautions against denying bail solely on previous conduct.
Dataram Singh v. State of U.P	2018 (3) SCC 22	Positive	Bail is the rule; imprisonment before conviction is an exception, to be weighed on facts.
State of Kerala v. Raneef	2011 (1) SCC 784	Positive	Undertrials have Article 21 rights; prolonged detention without cause infringes life.
Sushila Aggarwal v. State(NCT of Delhi) and Anr.	2020 (1) KHC 663	Positive	Allows continued investigation and recovery while on bail as per higher court guidance.

Extracted Judgment Text

Exact text extracted from official judgment records.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ## `BAIL APPL. NO. 2738 OF 2024` ``` CRIME NO.98/2024 OF EDATHUA POLICE STATION, ALAPPUZHA ``` ## `PETITIONER:` ``` VARGHESE MATHEW @ BINOMON AGED 35 YEARS S/O MATHUKKUTTY VARGHESE, MANNARU PARMBIL HOUSE,PACHA MURI, EDATHWA PANCHAYAT WARD-13, EDATHWA, ALAPPUZHA, PIN – 688573 ``` ``` BY ADV ARAVIND GHOSH ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY THE SUB-INSPECTOR OF POLICE, EDATHUA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2738/2024_ _-:2:-_ _Dated this the 5[th] day of April, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.98/2024 of Edathua Police Station, Alappuzha, registered against him for allegedly committing the offences punishable under Sections 341, 326 & 308 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 07.02.2024. 2. The essence of the prosecution case is that: on 07.02.2024, at around 13.30 hours, while the de-facto complainant and his friend, Sudheesh, were consuming alcohol, the accused demanded a share of their drinks. When they denied the same, the accused throttled the de-facto complainant. Thereafter, he also hit him with an iron rod on his leg, and he fell down. The de-facto complainant suffered serious injuries to _B.A.No.2738/2024_ _-:3:-_ his front upper teeth and rib. It is only because the de-facto complainant warded off the attack, he did not lose his life. Thus, the accused has committed the above offences. 3. Heard; Sri. Aravind Ghosh, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated Sections 326 & 308 of the IPC to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 07.02.2024, the investigation in the case is complete, and recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, _B.A.No.2738/2024_ _-:4:-_ the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also submitted that, if the petitioner is released on bail, he would tamper with the evidence and intimidate the witnesses. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it is seen that the prosecution allegation against the petitioner is that he, with an intention to cause grievous hurt to the de-facto complainant and his friend, assaulted them with iron rods and inflicted grievous injuries on them. 7. In **Sanjay Chandra v. CBI** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to _B.A.No.2738/2024_ _-:5:-_ conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **Dataram Singh v. State of U.P** . [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. Subsequently, in **State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. _B.A.No.2738/2024_ _-:6:-_ 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially taking into account the fact that the petitioner has been in judicial custody since 07.02.2024, which is 58 days, the investigation in the case is practically complete, and recovery has been effected, I am of the view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every Tuesday and _B.A.No.2738/2024_ _-:7:-_ Saturday between 9 a.m. and 11 a.m till the final report is filed. - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii)The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders _B.A.No.2738/2024_ _-:8:-_ on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State(NCT of Delhi) and Anr.** [2020 (1) KHC 663]. Sd/- ## **C.S.DIAS,JUDGE** DST/05.04.24 //True copy// P.A. To Judge